Voting Act Challenge Hinges on a Formula

The Supreme Court is hearing arguments on Wednesday in a major voting rights case. Here is some of the history of the law and the issues that are likely to be raised before the court.

Q.What did the Voting Rights Act do?

A. The Voting Rights of Act of 1965 addressed pervasive lawless conduct by Southern officials bent on denying blacks the right to vote. The act’s central innovation was its requirement that jurisdictions with a history of discrimination get permission from the federal government — the Justice Department or a federal court in Washington — before making changes to voting procedures. The requirement, in Section 5 of the law, applied to changes large and small, from moving a polling place to redistricting an entire state. It was a significant intrusion on state sovereignty and was initially meant to last for just five years.

Q.Which states does it apply to, and how was that list determined?

A. Section 5 at first applied to states and localities that met two criteria. The first was using a device like a literacy test to restrict the opportunity to register and vote. The second applied if fewer than 50 percent of people old enough to vote were registered in November 1964, or if fewer than 50 percent of them voted in the presidential election that year. Using that formula, all of Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina and Virginia were covered, along with parts of Arizona, Hawaii and Idaho.

The law was extended for five years in 1970, using data from 1968.

In 1975, Congress extended the law for seven years. It also expanded it to cover discrimination against members of “language minority groups” in places that used only English-language ballots even though substantial numbers of people spoke another language. The extension relied on data from 1972. The new formula meant that all of Alaska, Arizona and Texas were covered, along with parts of California, Florida, Michigan, New York, North Carolina and South Dakota.

Later renewals, for 25 years each in 1982 and 2006, used the coverage formula from 1975.

Q.Why has it lasted so much longer than five years? What reasons has Congress given for extending it?

A. Congress has repeatedly found, by large majorities, that Section 5 continues to be needed to combat voting discrimination that is more widespread and persistent in the places covered by the law. That conclusion is contested by some Southern states and officials, who say that continued coverage is an unwarranted badge of shame.

One question at the heart of the case to be argued Wednesday, Shelby County v. Holder, No. 12-96, is how much deference the Supreme Court owes Congress in light of provisions of the 14th and 15th Amendments, which give Congress the power to enforce their guarantees of equal protection and the right to vote through “appropriate legislation.”

Q.What has changed that has caused its critics to bring a legal case against it?

A. The challengers say that black voter registration and turnout rates now are high and that black elected officials are commonplace. They say the election of a black president, unimaginable in 1965, shows that the country has moved past the violations that gave rise to the law.

Q.What is the heart of the legal dispute?

A. When the Supreme Court last considered the constitutionality of Section 5 in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John G. Roberts Jr., writing for eight justices, avoided the question but suggested that Congress should act to update the coverage formula based on data fresher than 1972.

“Things have changed in the South,” he wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

Section 5 is an important tool, the chief justice said. But he said making distinctions among states requires justification.

“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” he wrote. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than it is nationwide.”

The nudge failed. Congress did not act.

Q.What do court observers see as the most likely outcome?

A. Many predicted that the court would strike down Section 5 in 2009, and they were wrong. Observers who make the same prediction today may suffer the same fate. But evidence suggests that the court’s five more conservative members may be prepared to take on at least one aspect of the law.

They could stop short of striking down Section 5 itself. But if they say only that the current coverage formula must end, sending the question back to Congress, that would almost certainly have the practical effect in the current climate of legislative gridlock of striking down the section altogether.

Q.What would be the practical effect of overturning part of the law?

A. In the last election, changes to early voting and identification requirements were rejected by courts under Section 5. Should it be struck down, such changes to voting procedures and voting districts in the covered jurisdictions would be subject to ordinary after-the-fact lawsuits, which are expensive and time-consuming.

A version of this article appears in print on , on Page A18 of the New York edition with the headline: Voting Act Challenge Hinges On A Formula. Order Reprints | Today’s Paper | Subscribe